WOMACK CONSTRUCTION CO., INC.
OSHRC Docket No. 76-1445
Occupational Safety and Health Review Commission
November 22, 1977
[*1]
Before: CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
John M. Orban, Assoc. Regional Solicitor
Frank J. Morton, for the employer
OPINION:
DECISION
BY THE COMMISSION: This case is before the Commission for review pursuant to 29 U.S.C. § 661(i). At issue is whether Review Commission Judge Erwin L. Stuller erred in granting the complainant's motion to dismiss the respondent's notice of contest because it was filed untimely. n1 For the reasons that follow, the Judge's decision is affirmed.
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n1 If an employer fails to notify the Secretary of Labor within 15 working days after receiving a notice of proposed penalty that he intends to contest the citation or proposed assessment of penalty, "the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency." 29 U.S.C. § 659(a).
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The citation for a serious-willful violation of 29 C.F.R. § 1926.651(c) and the notification of a proposed $5,000 penalty were [*2] sent by certified mail on August 20, 1975, to the respondent's corporate headquarters. n2 They were received there by a bookkeeper, Alice Lawrence, on August 22, 1975. Lawrence was not part of management or an officer of the corporation and had no authority to spend corporate funds to abate the alleged violation, pay the proposed penalty, or contest the citation. The respondent indicates in its notice of contest, which was not filed until December 30, 1975, that Lawrence "lost or misplaced" the citation. The respondent contends that no corporate official empowered to contest the citation or proposed penalty was aware of those documents until December 19, 1975, when Cecil Womack, the respondent's president and board chairman, received a letter from the complaint requesting payment of the proposed penalty.
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n2 When the Secretary decides, after an inspection or investigation, to issue a citation, "he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed." 29 U.S.C. § 659(a).
[*3]
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Citing Buckley & Co. v. Secretary of Labor, n3 the respondent asserts, in effect, that the service of the citation and notice of proposed penalty was inadequate and that its notice of contest was timely because it was filed within 15 working days of the date on which Cecil Womack received notice of citation and proposed penalty. The Commission disagrees and concludes that the Judge property decided that receipt of the citation and notice of proposed penalty by Lawrence on August 22, 1975, constituted valid service.
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n3 507 F.2d 78 (3d Cir. 1975).
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Buckley & Co. v. Secretary of Labor, supra, is distinguishable from the instant case. In Buckley, the citations and the penalty notification were sent to the employer's garage and maintenance shop superintendent at his workplace even though the Secretary knew the address of the employer's business office. The superintendent failed to forward them to the employer's corporate [*4] officials whose offices were located at a different location. The Court of Appeals held that this did not constitute proper notification to the corporate employer. In this case, however, the documents were sent to the respondent's corporate office.
Furthermore, although the respondent contends that Cecil Womack was its only official empowered to contest the citation or proposed penalty, it has not alleged that he was not available to contest them on August 22, 1975, or any date thereafter. This case is therefore distinguishable from Norkin Plumbing Co., n4 and Imperial Lumber Co., n5 where the Commission remanded the cases to afford the employers an opportunity to present evidence to establish their assertions that their failure to timely file notices of contest was due to the absence abroad of appropriately empowered officials.
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n4 OSAHRC , BNA OSHC , 1977-78 CCH OSHD para. (No. 76-4316, October 27, 1977).
n5 OSAHRC , 4 BNA OSHC 1908, 1976-77 CCH OSHD para. 21,352 (No. 12699, 1976).
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The respondent contends that it failed to timely contest the citation because its bookkeeper "lost or misplaced" the citation. This is not a sufficient reason for expanding the 15 working days permitted in 29 U.S.C. § 659(a) for contesting a citation. n6
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n6 City Mills Co., 77 OSAHRC 27/A2, 5 BNA OSHC 1129, 1977-78 CCH OSHD para. 21,591 (No. 15196, 1977).
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Accordingly, the Judge's order is affirmed.